Property Law and American Empire

Michael Burger and Paul Frymer have a new paper up on ssrn, "Property Law and American Empire," which is about to appear in the University of Hawaii Law Review.  Cribbing now from their abstract:

Current scholarship by legal commentators and political scientists recognizes that the weapons of American empire have involved non-militaristic activities as much as militaristic ones. Such non-militaristic activities include the hegemonic influence of trade agreements, the imposition of legal and procedural norms, and the dissemination of ideological and cultural predispositions through corporations and diverse medias. In this paper, we examine an under-explored area on the “soft” belly of the American leviathan, focusing specifically on how property and intellectual property law have operated on physical and ideological frontiers to comprehend, participate in, and legitimate the expansion of American empire. We offer new accounts of two historical instances of empire-building: the acquisition and seizure of property from Native Americans in the early- and mid-19th century, and the expropriation of intellectual property rights to plant genetic resources from indigenous communities in the global South in the late 20th century. These two stories, taken together, offer unique insights into both the process and the substance of law’s operation on the frontier of empire. They illuminate how the authority of law has fused with private power and legal legitimacy to enable the nation to expand swiftly, energetically, and powerfully. These insights, in turn, lead toward the more general conclusion that the rhetoric of property has functioned to subjugate peoples and places, cultures and natures, to an imperial regime.

This is an exciting and obviously wide-ranging article, which a lot of property professors will enjoy reading -- it fits well with Jed Purdy's article from a while back that focused on Johnson v. M'Intosh and the law of imperialism.  

And because it's going to be in the Hawaii Law Review, this reminds me that when missionaries went to Hawaii in the 1820s they brought with them the market and property rights.  The missionaries were bringing western property law to Hawaii in the era when the Supreme Court was issuing Johnson v. M'Intosh (and the parallel opinion in The Antelope). Property law served as a tool of empire in Hawaii, just as did law generally.  Law, like the transatlantic ship, the printing press, and the gun, worked as a technology to expand the power and reach of the empire.

The image is of a sugar factory in Hawaii in the pre-Civil War period, which I think relates well how western technology appeared on the land in Hawaii.  And of course I always love talk of the use of landscape art to understand property law.

Comments

[Jeff Matthews]

It's a good point, but hardly novel. The American Indians maintained this 300 years ago.

[Haole]

I think "Property law served as a tool of empire in Hawaii" is misleading. Yes, missionaries brought property law in the 1820s and Hawaii became part of the American Empire in 1898. Land tenure certainly contributed to annexation since many of the largest landowners were also the 1893 coup plotters.

But, any simple imperialist story ignores that Hawaiians negotiated and enacted the Mahele. From unifying the islands to the overthrow of kapu (taboo) to later changes in government, native Hawaiians changed their society after contact, but not as tool of empire.

[Alfred Brophy]

Haole, thanks for joining the conversation. Lots of stuff to talk about here -- the process of shifting to western patterns of land holding obviously involved actions by Natives as well as by westerners. To say that "Native Hawaiians changed their society after contact" makes the role of westerns seem passive, which obviously they were not.

I'm not arguing that western law was the only tool of empire; there were many -- and there were some Native Hawaiians who participated in the process of colonization. But in this process the power of westerners and their tools of empire (the ship, the gun, the written word) were great. I'd be interested in your thoughts on my paper, "How Missionaries Thought: About Property Law, For Instance." That's less about who was doing what and more about how missionaries understood/depicted Native property law and what Missionaries hoped to contribute to Hawaii:

http://blurblawg.typepad.com/files/how_missionaries_thought.pdf

[Jeff Matthews]

You 2 are right. There is typically "Native" involvement in the process. This still happens today. It goes like this:

Corporate America needs to exploit foreign resources for cheap. It lobbies the administration's military and quasi-military armed services to "protect OUR interests abroad." We find some natives who our willing to sell out their own people in exchange for American protection and a piece of the take (and/or some other advantage).